Military Commissions Are Back on Track

The ruling allows military prosecutors to address a legal flaw that had ground the prosecutions to a halt. The decision, by a three-judge panel of a newly formed military appeals court, was an important victory for the government in its protracted efforts to begin prosecuting some of the 340 detainees at Guantánamo.

The commissions were put on hold in June when a tribunal judge ruled that the Military Commissions Act allowed only prosecutions of those prisoners who were "alien unlawful enemy combatants." To that date, combatant-detainees had only been classified as "enemy combatants" by their CSRTs.

The decision by the appeals court allows prosecutors to present evidence of the unlawfulness of combatant-detainees at their trials. Presumably, the military commission in each case would first consider jurisdictional issues, including the lawfulness of a detainee's combatancy, before moving on to the merits of the case.

First up will be the case of Omar Khadr, who was captured fighting for Al Qaeda in Afghanistan when he was 15. That case is an interesting one because, aside from it being first and therefore something of a test-case for the new commissions, it is one of the very few cases where the U.S. faces the issue of children soldiers.